There are several interesting aspects to the brief filed yesterday by the 26 states in Florida v. HHS. Let me just address one here, and that is of the states' standing to challenge the minimum coverage provision.
Here is what may be noteworthy:
- The brief does not address the issue until page 67 of a 70-page brief, and then devotes only three pages to the question.
- The basis on which the district court found that Utah and Idaho had standing--the enactment of "health care freedom" statutes--was only listed third among the reasons the states have standing, and it was not ardently defended.
- Rather, the first reason the brief invokes is that the mandate will drive more individuals onto the states' Medicaid rolls, which will in turn cause injury to the state in the form of higher costs. As we have long discussed here, this is the most plausible basis for the states to have Art. III standing to challenge the minimum coverage requirement. But it depends on an empirical, causal connection between the mandate and Medicaid enrollment, a factual matter that was not developed in the district court.
Again, it is unclear exactly how much this matters here, in this case, given that there are individual plaintiffs as well, who seem to have standing in their own right. But I think, if anything, the brief's delicate treatment of the issue tends to confirm the shakiness of the states' standing, here and in Virginia v. Sebelius, to challenge the mandate.
